Facts
Parties and procedural history:
The complainant [A.], born in 1965, is under guardianship (representative guardianship with income and asset management) and has been receiving supplementary benefits (SB) to an invalidity pension for many years. On 12 February 2019, the IV office of the Canton of Bern denied entitlement to a helplessness allowance, as the insured person was not dependent on assistance in any of the activities of daily living, although there was a regular need for assistance in daily living. Due to the residential setting in a partially furnished room in an apartment of the association C. in building [D.] in U., the requirements for a helplessness allowance due to assistance in daily living were not met.
Due to ongoing criminal or custodial measures, the IV office suspended the invalidity pension as of 1 August 2022. The Compensation Fund of the Canton of Bern (CF) denied entitlement to SB as of 1 August 2022 by decision of 13 September 2022. After the measures were completed, the insured person was again entitled to an invalidity pension as of 1 November 2022. By decision of 21 February 2023, the CF set the SB as of 1 November 2022 and as of 1 January 2023. In its calculation, it explained that the daily rate of CHF 65.– in building [D.] resulted in an annual rent of CHF 23,725.–. However, the maximum rent deduction for a single person in a shared flat in rent region 1 amounted to CHF 9,720.– per year in 2022 and CHF 10,410.– per year as of 2023. For wheelchair-accessible apartments, additional shares of CHF 6,000.– could be taken into account.
The complainant [A.] filed an administrative court appeal against the CF’s decision, which was dismissed by the Administrative Court of the Canton of Bern. The complainant now lodges a public law appeal with the Federal Supreme Court and requests that the cantonal judgment be set aside and that the CF take into account the maximum rent for single persons in the SB calculation. Alternatively, a home calculation should be carried out taking into account a daily rate of CHF 86.50. He also requests free legal proceedings.
Considerations
Legal classification of the residential setting:
The Federal Supreme Court examines whether the lower court violated federal law by confirming the CF’s decision, which confirmed the SB entitlement as of 1 November 2022 and as of 1 January 2023 based on an applicable maximum rent deduction for a single person in a shared flat under Art. 10 para. 1ter SBA (SR 831.30). It is established that the IV office denied entitlement to a helplessness allowance because the complainant was not dependent on assistance in any of the six activities of daily living and the requirements for entitlement to a helplessness allowance due to assistance in daily living were not met due to the residential setting.
Concept of home and scope of application of Art. 25a para. 2 SBO:
Building [D.] is neither recognised as a home nor does it have a cantonal operating licence. The qualification of the complainant as a home resident according to the IV office’s decision of 12 February 2019 is not binding on the SB implementing bodies insofar as helplessness due to impairments in the activities of daily living is concerned. In the present case, however, helplessness relates to the need for assistance in daily living, not to the activities of daily living. The Federal Council has laid down an exception in Art. 25a para. 2 SBO exclusively for home residents with entitlement to a helplessness allowance due to impairments in the activities of daily living. An analogous application of this provision to cases of helplessness due to assistance in daily living is not justified, as assistance in daily living constitutes an independent entitlement requirement aimed at preventing or…